Net Neutrality: the struggle for the future of the Internet has only just begun

Net neutrality will allow the web innovators of the future to thrive, says intellectual property lawyer Denis Keseris

Attractive young woman using laptop at home
Faster speeds could improve applications such as video Credit: Photo: ALAMY

A global row is brewing over ‘net neutrality’ and depending on who wins – the Internet Service Providers (ISPs) or the regulators – the internet could be very different in the future.

Net neutrality is the principle that all internet data traffic should be treated as equal and that content should not be prioritised based on its source.

Imagine the data pipes we use to connect to the Internet (sometimes referred to as the "last mile") as the lanes we use on our roads. ISPs believe they have the right to create so-called ‘fast lanes’ or toll roads, where those content creators who pay to use them will receive a larger share of the bandwidth and a better service. At the receiving end on our screens, we are most likely to appreciate the need for this prioritisation when streaming data-heavy video or voice content, which requires greater bandwidth. Large-scale producers of this type of content are naturally in favour of ISP fast lanes and are willing to pay a high price to use them for their content.

In the US, the Federal Communications Commission (FCC) has recently introduced new regulations in support of net neutrality, which have effectively reclassified ISPs as a public utility and require that all content on the internet is treated equally. ISPs are obviously concerned that this could restrict their revenue-making opportunities and some content producers are also worried that they may not be able to secure any priority in the future. An industry fight-back has begun.

Leading the charge for the ISPs, is the US-owned, telecoms giant, AT&T. The company has recently published a patent application setting out technologies which they intend to use to prioritise some customers’ content and give them a better connection, while making access more difficult for file-sharers or customers who do not pay for a premium service. Using this type of technology, content providers such as Netflix and Amazon could also be able to secure prioritisation for their content. The ISP is also appealing against the FCC’s decision to classify them as a utility and challenging the very principles of net neutrality, arguing that there is no need to regulate competitive market forces in the "last mile".

The row over net neutrality is also taking place in Europe. Ambitious net neutrality reforms have been tabled by regulators in Brussels proposing that all internet traffic is treated equally, except in certain specific circumstances. However, the UK, along with 27 other EU member states, recently voted to amend the proposals by allowing some providers to prioritise ‘time-sensitive’ content, and the situation remains uncertain.

As things stand, it seems neither side is entirely happy. Those in favour of net neutrality believe that if governments don't take steps to ensure all data is treated equally then bandwidth will be auctioned off to large corporates, which would ultimately stifle innovation and competition. Moreover, proponents argue, large ISPs could become even more conflicted as they begin producing and distributing their own content. On the other side of the debate, ISPs believe that data discrimination must play an important part in facilitating the delivery of high quality internet-based services to customers, which require ever-increasing amounts of bandwidth, and that existing anti-trust (anti-competition, in Europe) laws are sufficient for preventing any abuses.

For web-based innovators too, the issue of net neutrality is highly important. Without the funds to pay for prioritisation, smaller businesses and start-ups would stand little chance of their content gaining any recognition. To date, the internet has always allowed for disruptive innovation to share the stage with established players on an equal, net neutral, footing.

ISPs on the other hand would stand to lose significant income opportunities in a strictly net neutral world, as they would be prevented from controlling content at the point of use by charging producers (and consumers) a premium.

Ultimately, game-changing companies like Facebook, Google and Twitter, all of which are vocal supporters of net neutrality, have all emerged and thrived in part because of their ability to use the Internet freely, and tomorrow's web-based game-changers will need to be able to do the same in the years to come.